Wednesday, December 1, 2010

On November 29, 2010 the California Legislature urged the California Court of Appeal to directly take up California School Boards Association v. Commission on State Mandates, which would otherwise first have to come up on appeal from a trial court.

1. As a recipient of federal IDEA funding, California is obligated by federal law to provide necessary mental health services to students with exceptional needs.

2. California counties' statutory obligation to provide mental health services is a state mandate that the Legislature is constitutionally directed to either fully fund or suspend each fiscal year.

3. The suspension of a mandate "in a manner prescribed by law" requires that the mandate be identified by the Legislature for suspension in the annual budget act and cannot result from the governor's statement in a veto message.

4. The governor's statement of suspension of mental health services mandates must be declared invalid without further delay, to avoid continuing confusion and harm to local governments and to students with exceptional needs

This lawsuit, filed by the CSBA and two school districts on November 9, was the second filed against Governor Schwarzenegger since he cut the funding for the services on October 8. The lawsuit alleges that the Governor overstepped his authority by vetoing funding for a state school program that provides mental health services to students and that eliminating the program requires a two-thirds legislative vote under Proposition 1A. The school districts involved in the lawsuit are Los Angeles Unified School District and Manhattan Beach Unified School District.

Thursday, November 4, 2010

In addition to the information that must be considered when developing any IEP document, and in addition to the required IEP content, the IDEA requires the IEP team to take into consideration "special factors" in specifically designated circumstances. Those situations give rise to additional information that often must be addressed and included in the IEP document.

Under 20 U.S.C. section 1414(d)(3), Special Factors to be considered by the IEP Team include the following:

Behavior needs and behavioral interventions

"In the case of a child whose behavior impedes the child's learning or that of others, [the IEP Team shall] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 20 U.S.C. section 1414(d)(3)(B)(i).

In consideration of this special factor, the IEP team first has to determine whether the child's behavior impedes his/her learning or that of others. This determination can be based on data from a variety of sources, including teacher input, observational data, or an assessment in this area, such as a Functional Behavior Assessment (FBA). A child's behavior can be determined to "impede" learning based on a number of reasons. If the child's behavior results in removal from class because of disciplinary reasons, this may "impede" his/her learning because he/she is not available in the classroom to recieve instruction. If the child's behavior is disruptive, it may impede the learning of others because they lose instructional time. The team's determination with regards to this issue should be clearly documented within the IEP, so that information regarding what behaviors specifically exist and how they impede the learning of the child or others is clear to all of those developing and implementing the IEP.

Once the determination is made that behaviors exists that impede the learning of the child or others, then the IEP team is mandated to consider the use of strategies and supports to address that behavior. The IDEA refers to "positive behavior interventions and supports" as well as "other strategies."

Language Needs

"In the case of a child with limited English proficience, consider the language needs of the child as such needs relate to the child's IEP." 20 U.S.C. section 1414(d)(3)(B)(ii)

Instruction in Braille

"In the case of a child who is blind or visually impaired, [the IEP Team shall] provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille is not appropriate for the child." 20 U.S.C. section 1414(d)(3)(B)(iii)

Communication needs

The IEP Team shall "consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's langauge and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode." 20 U.S.C. section 1414(d)(3)(B)(iv)

Assistive Technology services under the IDEA means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. See 20 U.S.C. 1401(2); 34 CFR 300.6. Assistive Tecnology devices are pieces of equipment or other items utilized to maintain or to improve the child's functional capabilities and enable them to access their learning environment and the curriculum. An AT device can be something high-tech, like advanced computer softward or devices, or something as low-tech as a pencil grip.

The IEP team is required to consider the child's unique needs and make a determination regarding whether the child requires AT. If the child does require AT, this must be documented within the IEP. It may not be necessary for the District to write in the exact device name, but enough information should be included to specify what type of device is to be used and what purpose it will serve, as well as what services will be provided to the child (including frequency and duration) related to the device.

Wednesday, November 3, 2010

A class action lawsuit was filed last week by the collaborative forces of various public interest law organizations in Los Angeles in response to the Governor's line item veto of funding for mental health services and suspension of the AB 3632 mandate.

As part of the class action litigation, Plaintiffs sought a Temporary Restraining Order (TRO) against various defendants. The Plaintiffs sought an order to require the state department of education (CDE) to take certain actions to monitor and track changes in local policies and practices related to mental health services, exercise its authority under the law to compel local education agencies (i.e. school districts) to ensure that students receive mental health services without delay or interruption, and disburse federal IDEA funds including those specifically delineated for mental health services on the same basis as they were disbursed prior to the Governor's actions on October 8th. Additionally, as to the "local" defendants, including the LA County Department of Mental Health, Plaintiffs sought a TRO requiring the continued provision of mental health services, including assessments, attendance at IEP meetings, and providing services and funding residential placements, at the same level as was previously provided in accordance with the procedures existing prior to the Governor's veto.

State Department of Education (CDE) Action and Agreement to Disburse Funds

On October 29, 2010, Jack O'Connell, State Superintendent of Schools, announced that CDE would be releasing $76 million in federal IDEA funds reserved for state level activities to county offices in order to fund educationally-related mental health services through county mental health agencies. Thus, these funds would be available to ensure the continuation of services mandated by federal law for students with disabilities.

In announcing this action, O'Connell stated "I refuse to let the Governor's misguided action prevent severely disabled students from getting the mental health care they need from qualified providers... The Governor's veto does not override federal law; School districts must still implement the IEP... yet most districts don't have the expertise to provide psychiatric and medical management of necessary medications and other mental health services..." See California Department of Education News Release; October 29, 2010 http://www.cde.ca.gov/nr/ne/yr10/yr10rel122.asp

Stipulated TRO for Provision of Services by LA County DMH

Yesterday, November 2, 2010, the federal judge in the U.S. District Court for the Central District of California signed a stipulated Temporary Restraining Order in this matter. Because of the assurances of disbursement of reserved funding by the CDE, funding would be available to LACDMH to provide services in accordance with the practices and procedures for distribution of funds existing before October 8, 2010. Thus, the stipulated TRO provided that LACDMH would "resume and continue to provide and monitor educationally-related mental health services... attend IEP meetings and authorize services, and complete assessments..." either until the "reserved" funding runs out or until January 14, 2011, whichever occurs first.

What does this mean?

The issue regarding funding for educationally related mental health services in California is by no means resolved. However, locally in Los Angeles County, the process for providing these services through a student's IEP will theoretically return to the same practices and procedures as before the veto by the Governor, and the subsequent chaos of the past few weeks, occurred. At least for the time being - the "reserved" funding will not last forever, and the long term problem still requires a resolution. For students and families throughout California, Mr. O'Connell's action is a step in the right direction towards ensuring stability in the provision of much needed services during this time of confusion. It means that funds will be disbursed for the provision of services through the counties. Additionally, CDE has continued to remind local school districts of their ultimate responsibility to provide students with a FAPE, and the CDE has agreed to issue directives regarding these obligations in an attempt to ensure and oversee compliance. Within the context of the class action, the Plaintiffs involved have agreed to inform CDE of any information that they obtain regarding non-compliance by a local school district of its obligation to provide or pay for related mental health services when a non-educational agency fails to do so.

Tuesday, October 26, 2010

For a student who is 16 or older, or who will turn 16 while this IEP is in effect, the IDEA requires that the written IEP document include:

"(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; (bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and (cc) beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights... that will transfer to the child on reaching the age of majority..."20 U.S.C. section 1414(d)(1)(A)(VII).

"The big picture"

Transition planning is arguably one of the most important parts of the special education process. When enacting the IDEA, Congress recognized that:

Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living and economic self-sufficiency for individuals with disabilities.

20 U.S.C. section 1400(a)

The very first "purpose" of the IDEA as contained in the statute states:

to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

20 U.S.C. section 1400(d)(1)(A).

Thus, the IDEA places importance on educating students with disabilities so that they are prepared for "further education, employment, and independent living," and in order to allow them to enjoy "full participation, independent living and economic self-sufficiency" in society. Without appropriate transition planning, these purposes could not be met.When does this apply?

The requirement that the IEP document contain postsecondary goals and transition services begins at age 16. This means that the IEP that will be in effect at the time that the child turns 16 will need to meet these requirements. It is not OK for the District to wait until the next IEP review taking place after the child's 16th birthday to add postsecondary goals and transition services to the IEP.

What are postsecondary goals?

Postsecondary goals are measurable goals related to the student's prospective outcomes for after high school - how and where the student will live, work, engage in the community, and receive further education. Postsecndary goals should be based upon transition assessments and take into consideration the student's strengths and weaknesses. In developing postsecondary goals for the IEP, the student's preferences and long-term plans become more relevant and important to consider. The IDEA specifies that transition planning be "results-oriented," so it is appropriate for post-secondary goals to look forward to the results or outcomes that the student desires and which are appropriate for that individual students. Goals can be related to further education, empolyment, independent living, community participation, etc. Setting clear and measureable postsecondary goals will allow the IEP team to determine what transition services, related services, and specialized education will be necessary to achieve those goals.

What are transition services?

The IDEA defines transition services as

"A coordinated set of activities and services for a child with a disability that(1) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability or to facilitate the child's movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;(2) is based on the individual child's needs, taking into account the child's strengths, preferences and interests; and includes (i) instruction, (ii) related services, (iii) community experiences, (iv) the development of employment and other post-school adult living objectives, and (v) if appropriate, acquisition of daily living skills and provision of a functional vocational education."

Friday, October 22, 2010

On October 8, 2010, Governor Schwarzanegger signed the state’s budget for fiscal year 2010-2011, while using his line item veto to cut billions of dollars to state funded programs.Among the programs affected are mental health services provided to students with disabilities under what is known as the AB 3632 Mandate.The Governor used his veto to eliminate approximately $133 million in funds apportioned for the state to reimburse County Mental Health agencies for mandated services they have already funded.At the same time, the Governor suspended the AB 3632 mandate going forward.

AB 3632 was enacted in 1984 in order to assign County Mental Health departments the financial responsibility for funding mental health services required pursuant to students’ IEPs.Under AB 3632, County Mental Health departments also funded residential placements for students who were eligible under the category of “Emotionally Disturbed” and required residential placement in order to receive an appropriate special education program.

The Governor’s action has been called “unconscionable” by many, and leaves school districts, SELPAs, County Mental Health departments, providers, residential treatment facilities, and IEP teams in a complete and utter state of chaos.Parents and students are unfortunately likely to be immediately and negatively impacted.

Suspending AB 3632 services does not eliminate mental health services or residential placements, but instead returns the responsibility for these state mandated services to the local education agencies (school districts).However, as each County Mental Health department and each School District reacts to the chaos individually and decides what action to take, there will almost certainly be disruption in services for many students.

Already, litigation on this issue has begun.On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website (http://www.disabilityrightsca.org/) as well as the complaint filed in federal court).

On October 8, 2010, Governor Schwarzanegger used his line item veto to cut billions from the state budget for fiscal year 2010-2011, including $133 allocated to County Mental Health agencies for AB 3632 services. Please read Part 1 in this Series on this blog for more information about the suspension of the AB 3632 mandate.

The Governor has made it clear that he intended to suspend the mandate for AB 3632 (mental health services) in California. AB 3632 allocated responsibility for the provision of mental health services pursuant to a child's IEP, as well as residential placements for emotionally disturbed students, to county mental health agencies.

Mental health services under AB 3632 included

individual or group psychotherapy

collateral services

medication monitoring

intensive day treatment

day rehabilitation

case management services

Title 2, California Code of Regulations, Section 60020(i).

Outpatient services are provided at a clinic or public DMH agency, or may be located on a school campus in some circumstances. "Intensive day treatment" and "day rehabilitation" services are intensive mental health services provided in community based or residential treatment program settings.

Additionally, residential placements were funded under the AB 3632 mandate for students who were eligible under the category of "emotional disturbance" and who required a residential educational placement in order to receive an appropriate special education program. (*note: residential placements for students under other categories of eligibility were already the responsibility of the school districts / local education agencies).

Residential placement is an out-of-home placement in a residential treatment facility with a school program certified as a Non Public School (NPS) and appropriate mental health and day rehabilitation services as part of the program. *Residential placements are on the "continuum of placement options" under the California Education Code.

The Governor's suspension of the mandate has caused chaos, confusion, and controversy throughout the state. Because mental health services are mandated by federal law (the IDEA) to be provided as part of a student's IEP if they are required for that student to access an educational benefit, the suspension of the California-specific AB 3632 mandate does NOT eliminate mental health services for students who require them. Nor does the Governor's action mean that residential placements will, as a matter of course, no longer be available for students in California.

The State of Chaos for County Departments of Mental Health

On October 12, 2010, the Executive Director of the state Mental Health Directors Association sent a memo to all County Mental Health agencies regarding the current state of AB 3632 services. The memo addresses questions arising from the suspension of the mandate, such as whether the Governor actually had the legal authority to suspend a mandate. Additionally, it indicated that there was uncertainty about factors such as the date on which the suspension was effective (October 8th or retroactive to the start of the fiscal year), whether / how counties will ever be reimbursed for the costs incurred from 2004 forward for providing services, and how funding will be accessed / provided for transition of services to school districts.

The Memo set forth "Issues/Actions" for counties to consider, discussing the pros and cons of each action. Subsequently, County Mental Health agencies across the state have each interpreted / implemented these "actions" individually, giving rise to a true state of confusion across California.

It appears to be fairly consistent that most County Mental Health agencies in Southern California are no longer accepting any new IEP referrals from school districts, stating that they do not have the legal right or responsibility to be involved in the IEP process. Los Angeles County Department of Mental Health (LACDMH) and San Diego County Department of Mental Health have reportedly taken this position. Additionally, counties that have taken this action are in most cases refusing to attend IEP meetings or participate any further in cases in which the DMH assessment had already occurred but the IEP meeting had yet to be held.

Reportedly, County Mental Health agencies have also been communicating with school districts, SELPAs, and contracted-residential placement staff, with inconsistent statements made. In some reports, Counties have indicated that students already in residential placements will continue to be funded through the end of this year, but in other reports, Counties have indicated that students will no longer be funded in residential placements effective immediately.

What is truly the "unknown" is what action County Mental Health agencies have taken / are taking to work with SELPAs and school districts to determine how to effectively transition students' services to the school districts.

The State of Chaos for School Districts / Local Education Agencies

Related services and appropriate placements (even residential placements) must be provided to a student as part of a Free Appropriate Public Education in order to meet the child's unique needs and provide them with educational benefit. If mental health services are required as a part of FAPE, they must be provided. It has always been the case that even though California allocated funding-responsibility to county mental health agencies under the AB 3632 mandate, the state education agency (CDE) through the school districts / local education agencies remained ultimately responsible for ensuring that the child was provided with a FAPE. See 20 U.S.C. sections 1400(8), 1401(22); 1412(a)(11)&(12); 34 C.F.R. sections 300.341, 300.360; California Education Code section 5600 & 56031; California Government Code sections 7570 et seq.

As courts have stated;

When disputes between agencies over funding arise, the school district must "ensure that the placement is at no cost to Parent, as provided for in 20 U.S.C. section 1412(a)(10)(B)(i). In other words, if there is to be a fight over payment, it is to be between the [school district] and [the other public agency], not between the parent and the [agency]."

"Compliance with duties under the IDEA is a serious matter... Thus, it is not surprising that Congress would impose a duty on local education agencies to continue services to students if local a mental health agency refused to do so."

All related services necessary for a child to benefit from special education / required for the child to make progress towards IEP goals, are the responsibility of the child's school district. Provision of an appropriate placement, including, when required, a residential placement, is also the responsibility of the child's school district. These responsibilities fall within the general duty of the school district to make a FAPE available to each child within its jurisdiction.

Thus, school districts in California are now left with the obligation and responsibility to continue to provide mental health services and residential placements, even though just a few weeks ago the funding responsibility fell on another agency. School districts are not permitted to refuse to provide services pursuant to an IEP, or to refuse to include services that are necessary in the IEP when it is developed, simply because a funding source is not identified. If the county mental health agency refuses to fund services, or ceases funding previously funded services, for any reason (such as the current suspension of the mandate), the school district must assume responsibility.

On October 18, 2010, the California Department of Education, Special Education Division, issued a memorandum to all SELPAs, County Offices of Education, the Advisory Committee on Special Education, Nonpublic School Administrators, and "Interested Individuals, Agencies and Organizations" addressing the present issues. In that memo, CDE called the Governor's actions "unconsionable" and indicated that the suspension of the mandate had created a "state of chaos" in California.

The intention of the memo was to "remind all special education local planning areas (SELPAs), county offices of education (COEs), and local education agencies (LEAs) [school districts] of their responsibility to provide mental health services to students with disabilities." The CDE cited to California Government Code sections and the IDEA. It stated "If a public agency other than an educational agency fails to provide or pay for the special education and related services... the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner." (quoting 34 C.F.R. section 300.154(b)(2).

Despite this reminder, and the clear legal mandate from the federal law, a state of confusion has definitely ensued, and many school districts are reportedly telling parents that residential placements will no longer be offered, IEP meetings will not be held to discuss needed mental health services, etc.

The State of Chaos for Parents, Students and the Community

Many strange things have happened since the Governor's actions on October 8th. Some parents have been told by school districts (or by residential school staff, who were told by school districts or mental health agencies) that all residential placements would cease to be funded immediately. Other parents have reported that they have heard that the school districts won't continue to fund the residential placements if the child can "survive" outside of that setting. IEP meetings that were scheduled to review assessments by County Department of Mental Health professionals, and thus to determine necessary mental health services, are reportedly being canceled across the state.

School districts and IEP teams in California are so used to having the AB 3632 mandate, that they have forgotten the fact that residential placements and mental health services are not something "special" or "unique" to California. Thus, some school districts are understandably confused about how to make the determination of necessary services and placement under the genre of "mental health."

The community as a whole is certainly affected by the chaos, and litigation on these issues will likely be plentiful. It will take the collaborative efforts of non-profit legal services offices and the community of special education attorneys, advocates and parents, likely working with school districts, mental health agencies, etc, to address this issue in the long term. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website, as well as the complaint filed).

Here are some final points to keep in mind if you are being told that services are going to stop, that placement is going to end, etc:

1. Most importantly, remember that ANY change to your child's IEP, including the placement and services he/she receives, cannot be done unilaterally / outside of the IEP process. At the least, an IEP meeting should be held and/or you should be given prior written notice of any proposed changes, after which you have the right to disagree with the proposal. You shouldn't sign an "administrative addendum" or other IEP document that is simply sent to you stating that residential placement is no longer available.

2. If a service is listed in an IEP already (i.e. outpatient mental health services, residential placement), that service / placement is, by definition, related to the student's education. No matter what agency was funding them before, services that were not related to a child's education and necessary for the child to make progress should not have been listed in the IEP. Thus, the school district's should not be able to argue that they are not responsible for mental health services or residential placement because those things were not "educationally related."

3. If a school district has made a referral for assessment by County Mental Health under AB 3632, and now that assessment will not go forward because of suspension of the mandate, the obligation to evaluate the child in this area falls back onto the District. The school district is obligated to evaluate a child in all areas of suspected disability, and the referral can be argued to be indication that the district acknowledges this as an area of suspected disability / an area that needs to be assessed.

4. A district's unilateral determination to stop services or placement due to the lack of funding through the department of mental health may give rise to a compliance issue, which can be addressed through a compliance complaint filed with the CDE, or to due process issues, which can be addressed by requesting a due process hearing with the Office of Administrative Hearings. Likely, there will be an influx of these types of cases in the coming weeks.

Finally, this is certainly all confusing and chaotic, and school districts, mental health agencies, providers, and parents are left to figure out on a case by case basis what will happen next. If you are impacted by this and fear that services will be eliminated, you should consult with a special education attorney for assistance.

Wednesday, October 20, 2010

The Individuals with Disabilities Act (“IDEA”) requires that students with disabilities be provided with a “free appropriate public education,” which includes provision of related services necessary for a child to benefit from his or her special education.Related services includes “mental health services,” and since “FAPE” must be provided at “no cost to parents,” this obligates the educational agency to fund mental health services required to allow the student to benefit from their education.

In California, prior to 1984, concerns arose that the federal mandate for provision of appropriate mental health services as a part of a student’s IEP was not being implemented effectively.The mental health needs of students with disabilities were largely ignored, sometimes until more extreme interventions, like the juvenile justice system or hospitalization, were required.There was also a concern regarding the lack of coordination of services between school districts and other public agencies.Based on these concerns, the state legislature enacted what is known as AB3632, assigning the responsibility for mental health services to the state department of mental health, through the county departments of mental health.Thus, AB3632 assigned responsibility for mental health goals on a child’s IEP, mental health services, and even residential placements for seriously emotionally disturbed students, to an agency other than the local educational agency (i.e. school district) even though these components of the IEP are related to the student’s receipt of FAPE.

Over the past several years, much talk has occurred regarding the funding for AB3632 services.It has almost always been known to be an “underfunded” mandate.Counties estimate an amount in the hundreds of millions in terms of the money that has been spent on mandated services that has not been reimbursed by the state in accordance with the provisions of AB3632.

Enter Governor Schwarzenegger.

In 2005, the Governor’s budget proposed to suspend the AB3632 mandate.Advocacy groups, school districts, and even county mental health agencies argued against suspension noting that confusion and chaos would ensue if the obligation to fund and provide mental health services suddenly was shifted back to school districts without an appropriate transition.It was noted that school districts were not prepared to take on this obligation, that they did not employ the appropriate mental health professionals to provide these services, and that there was an “institutional disincentive for school districts to identify children as having complex and potentially costly mental health service needs if schools become the only agency responsible for meeting those needs.”See “AB3632,” Adolescent Mental Health Policy News, California Adolescent Health Collaborative, April 2005 (www.californiateenhealth.org).

In 2010, the issue arose again.In May 2010, a proposal to revise the AB3632 mandate was contemplated in the California General Assembly.Again, advocates argued that “suspension of AB3632 would most likely result in complete disarray and gaps in services for children as shifts in responsibility for and funding of the services occur.”See Letter to Honorable Dave Jones, AB3632 May Revision Proposal – Oppose, Disability Rights California (www.disabilityrightsca.org).

On October 8, 2010, Governor Schwarzenegger utilized his “line item veto” to veto approximately $133 million within the state budget package for reimbursement to County Mental Health for “back claims” of amounts owed to them for providing mandated AB3632 services.At the same time, Governor Schwarzenegger stated that he was “suspending the AB3632 mandate.”Thus, effectively as of that date, county Mental Health is no longer required to provide mental health services to students pursuant to their IEPs, and school districts will now be required to provide these services and placements.No additional funding was allocated in the budget to cover the expenses that will be occurred in order to meet these obligations. (*there is debate regarding whether the Governor could use a "line item veto" to effectively eliminate an entire mandate, which will likely be one subject of litigation in the coming days, weeks and months. Meanwhile, what we know is that in fact, the Governor's intention with this action was to suspend the mandate).

The action has been called by many “unconscionable” and certainly creates a state of chaos for school districts, county mental health agencies, parents, and students.See, e.g., “Governor’s proposal puts kids’ mental health services at risk,” Michael C. Watkins (www.santacruzsentinel.com); “CDCAN Report #190-2010” (www.cdcan.info/node/1357).It is uncertain what the Governor could have possibly believed he was accomplishing by this action.Ultimately, it will not save the state any money to cut out of the budget funding for “mental health services” through AB3632 specifically, as these services are still mandated to be funded.The financial burden will simply shift to the already over-burdened school district, and the state as well as local educational agencies will also likely incur expensive legal fees because of issues arising out of this state of chaos.

Stay tuned to the blog for more information. Tomorrow's postings will cover "What happens next after the Governor's veto?"(the all important question, with somewhat speculative answers).

Wednesday, September 29, 2010

The U.S. House of Representatives has approved a bill (unanimously!) to strike the words "mental retardation" and "mentally retarded" from many Federal statutes, replacing those terms with the words "intellectual disability" and "individual with an intellectual disability."Read the full text of the bill here.

Within the context of special education laws, the bill will mean that wherever "mental retardation" is referred to (for example, when discussing eligibility categories), that term will be stricken and replaced with "intellectual disability." The same applies to section 504 of the Rehabilitation Act.

This is only one step, albeit an important one, among many that will be needed to stop the R word. Changing the designation in laws may not stop the use of the R word as a derogatory slang or insult, but it is certainly a step in the right direction in terms of societal awareness.

Tuesday, September 28, 2010

Please read Part 1 and Part 2 for more information on this topic, including contact information and instructions for contacting the Governor's office.

Below is a sample letter for parents, advocates, etc to utilize in order to contact the Governor's office about this issue. You can (and should) personalize this letter prior to sending it.

INSERT YOUR CONTACT INFORMATION

INSERT THE GOVERNOR'S CONTACT INFO (See Part 2 of this series)

DATE

Re: SB 1317 / Please Veto

Dear Governor Schwarzenegger:

I am writing to request that you veto SB 1317, the truancy bill authored by Senator Leno. There are already serious penalties for parents who neglect their children, a concept which includes failure to ensure that the child is educated. Since this bill comes into play with a student who has missed 10% of the year to date, depending on the time of year, it could be applied based on a small number of absences. It is vague in defining parent fault: it applies to a parent "who has failed to reasonably supervise and encourage the pupil's school attendance." It does not set forth any exception for parents who are not currently encouraging school attendance for very good reasons. It could easily be interpreted to make absences that do not fall within the narrow excuse categories recognized by law, regardless of the reasons for those absences, a serious offense capable of wreaking financial havoc through large fines and separating families by jailing parents. Students miss school for many reasons, some obviously bad and some of which may represent the best choices in bad circumstances. Their out of school activities range from committing juvenile offenses to caring for sick siblings to watching TV to receiving intensive educational services for 30-40 hours per week at their parents' expense. This bill treats very different types of "truancy" the same. It could easily worsen the problems that lead to absences. While the theory seems to be that prosecutors will use discretion wisely, it is not realistic to expect that they will be able to investigate reasons for truancy in each case, and this bill does not require them to. Alternatives to punishment are optional. Though the bill does not apply to home schoolers who intend to home school and provide appropriate paperwork from day one, it would greatly endanger parents forced into informal homeschooling by absence of appropriate special education services or by bullying midway through the school year. Districts in special education disputes would attempt to apply it to students who are in tutoring programs that are not certified as schools. This bill would empower administrators who refuse needed services or who dismiss complaints about bullying and harassment without adequate investigation. It would allow oppositional teenagers to create massive legal problems for their parents. It would terrify parents who have good faith, reasonable beliefs that their child needs to be removed temporarily from school until problems are discussed and addressed, and could frighten them out of taking steps which are necessary for their children's progress and even safety. Please work this budget year on protecting school funding, and figuring out how parents and teachers can work together to do more with less. Please veto this measure which would instead pit schools and parents against each other.

Contacting the Governor: For this "call to action," Parents, advocates, attorneys and others in the special education community are encouraged to send a letter (see sample in Part 3) by either email or fax, or call one of the office numbers below to provide your input.

Over the past couple of months here in California, Senator Leno's "Truancy Bill" has been a big topic in the world of public education. The bill's well-intentioned point is to "improve efforts to fight truancy," and as an effect of those efforts, hopefully do something to prevent kids from becoming juvenile delinquents. As noble as this sounds, and as much as we need to combat truancy issues in our schools, as written, the serious negative consequences for truancy (including jail time for parents or hefty fines) could be applied in circumstances involving students with disabilities in a harmful and unjust manner.

Take for example some of the following scenarios:

* Parents disagree with the school district's offer of placement and services because they believe that the child requires intensive 1:1 instruction or an ABA (applied behavioral analysis) based program. They remove their child from school for part or all of the school day, providing appropriate notice as required under special education laws, and place their child in a private program at their own expense. Case law recognizes the importance of allowing Parents the opportunity to fund private placements and services, and take the financial risk of seeking reimbursement for those programs, rather than requiring Parents to leave their child in a "potentially inappropriate" setting. This right would be virtually stripped if those Parents would face jail time as a penalty for invoking this process.

* Child with a disability has serious anxiety and depression, and refuses to go to school. Although not physically "sick" in a traditional sense, the child's health and well-being may be affected if he/she attends school with such extreme levels of anxiety, and Parents keep the child home until alternatives can be agreed upon or supports can be put into place. Parents will not be able to make these decisions about their child's welfare under this bill.

* Child with a disability has social/emotional and/or behavioral difficulties that include school refusal. Parents are doing everything they can to attempt to get the child to school or encourage school attendance, but school district officials don't believe they are doing enough. Those Parents may face the penalties called for under this bill.

* Child with a disability has been seriously harassed or bullied by other students because of his/her disability, and Parents have reported the bullying to school officials, who have done nothing in response to prevent the bullying from occurring. Parents do not feel the school is a safe environment because of the physical harm being caused to the child. These Parents would not be able to keep their child home until safety is ensured. Effectively, school personnel who "ignore" such reports of bullying would be empowered to do so.

These are hypotheticals based on scenarios that special education attorneys, advocates and parents see and experience on a regular basis. There is no language in the bill to provide an exception for such scenarios, and the language that is included is vague and easy to misinterpret, misapply, and even abuse. Most alarmingly, perhaps, is the lack of clarity as to what constitutes a "chronic" truancy problem giving rise to the penalties it imposes. Because these penalties are triggered by missing 10% of the school year to date, without further clarification, interpretation could lead to imposition of penalties for a very small number of dates depending on the time of the school year. (For example, 30 school days, or approximately 6 weeks, into the year, a child who had missed only 3 days would be considered chronically truant.)

The current state of this bill is that it has passed the state Senate and House, and is awaiting the Governor's action on it. Thus, this "call to action" is for Parents, advocates, etc in the special education community to contact Governor Schwarzenegger and request that he veto SB1317, the "truancy bill."

Parts 2 and 3 of this posting will include contact information and a sample letter.

Monday, September 27, 2010

Here's a little disclaimer / warning about this post before you proceed with reading it. First off, it is about a topic of controversy, and portrays some events that may be upsetting. Secondly, this post is from a much more personal standpoint than the posts on this cite normally are, and it is based primarily on my opinion about this topic and the reasons for that opinion.

I want to share a story that I recently encountered, told to me by someone very close to me who witnessed this happen. It is a story many people will familiarize with.

This person lives in a small town, where he works in a retail store. He happens to have an adult brother with Autism who also has co-existing cognitive delay. He was at work one afternoon when a well-known local came walking in exclaiming:

"You better lock up the store, there's a bunch of retards coming this way!"

He continued to talk in this manner, very loudly, warning the staff to close up shop to prevent these "retards" from coming in. Minutes later, the group of individuals he was referring to came into the store. My friend, the retail sales associate, saw that it was a group of students from the local high school out for a shopping trip as part of their community-based instruction. Many of those students were teenagers he knew from his work with a youth group at a local church.

What was amazing to me was that this one single retail employee in that establishment was the sole person who had seemed to be upset by the comment. Maybe it is because he grew up with a brother with a developmental disability, and so has greater sensitivity, but I would have hoped that a larger slice of society would react negatively to someone actually stating that a store's doors should be closed to a group of citizens because they happen to have disabilities.

Replace the R-word with the N-word in this story, and think it over again. Replace it with "fags" or "queers." Consider the point from that perspective - Anytime you label a group of people in a derogatory manner based on their race, disability, sexual orientation, etc, and actually proclaim that this group of people should be barred from entrance to a public business establishment, that is truly offensive no matter what the identifying "characteristic" (for lack of a better term) of the group is.

The "R-word" has become a term of insult in our society. Through use, derogatory words become part of the vernacular of our everyday language. Our "native language" within our society is developed through use. The vernacular is changing continuously as words are added through their common use. Think of how many times you may have heard the phrase "that's so retarded" or "you're such a retard" in context of something that has nothing to do with actually having an intellectual disability. Such phrases are used to insult someone, by drawing an disparaging comparison to a person who is considered "less than" because of an intellectual disability. This implies that to be "retarded" or "a retard" is something unpleasant, bad, appalling; something to be shunned. Through this use, the "R-word" becomes an insult. It becomes, or has become, a "bad word."

Words really do have power. "Sticks and stones may break my bones, but words will never hurt me" may have been drilled into us as kids, as a mantra to ward off the affects of verbal bullies, but it never seemed to me to have much truth. Words do have power, and words have the ability to hurt. Name calling, derogatory comments, racial remarks, insults, etc can all humiliate a person or cause emotional trauma.

Not only does an insult hurt the person you are insulting, but when the words used are derogatory to a larger group of people, based on their race, disability, religion, sexual orientation, ethnicity, nationality, etc, words perpetuate hate. We use the "R-word" to mean something bad, even despicable, and then when we refer to the actual group of people that the word "retarded" was intended to include, it is now associated with hate, with shunning those people from society.

Here's what I think is the best way to explain this:

Words/speech are the first rung of the "ladder of prejudice," leading to a cycle of hate that perpetuates further and further discrimination. In the first phase, or "rung," people in society engage in derogatory speech against a group of people based on their race, disability, religion, etc. As discussed above, through use this hate speech becomes a part of the accepted vernacular of that society. The next step, and natural progression if you really think about the link here, is avoidance. The words we've used have become derogatory; they carry the connotations of something bad or even dirty. So we as a society avoid the people that these words describe. The third rung is more overt discriminatory acts. At this phase, we have as a society developed the accepted behavior of avoiding certain people, so it is natural that society would accept actual segregation. This is the "not in my backyard" phase. Let's just put "those people" somewhere else; institutions, segregated neighborhoods (concentration camps?). The fourth rung is violence, and here we hope it is no longer behavior that is acceptable to the community at large, but yes, society as a whole has a part in this phase. Violence and physical attack may be engaged in by a small minority of people, but it happens because of the "no one cares anyway" attitude. If society has labeled, insulted, shunned, and segregated certain people, who would believe those people to be protected? The final rung, the extreme, is "extermination." And before you jump to exclaiming that would never happen here, in the U.S., consider the broader meaning and applicability. We aren't just talking about genocide (although that certainly is caused by prejudice and discrimination). Consider the practice of sterilization. Historically, here in the U.S., involuntary sterilization of women with intellectual and developmental disabilities was actually considered acceptable at one time, partly in order to prevent such persons from reproducing more disabled persons.

So when I heard about the situation I started this post with, the incident my friend witnessed and experienced, I thought back to these concepts from my college Sociology classes and from law school discussions about equal protection. I thought about what we learn from elementary school onward about how segregation, discrimination, etc is not acceptable. We're "taught" that, but we have so far to go before it is reality. This "incident" is a perfect example of the cycle of hate, in my opinion. Here was a person using a derogatory word to try to insult and make fun of persons with disabilities, in order to marginalize them and shun them from society. He even went so far as to assert that the doors of a public establishment should be shut to them. Sounds like all of the first three "rungs" to me - speech, avoidance, segregation. Degrade people, shun them, separate them from society.

At the end of this, I am writing this because I believe that this isn't just about being overly politically correct, or about anyone being overly sensitive. It is about real prejudice and real hate speech that goes on every day in our society. Maybe for people who don't see, as I do, first hand examples of how non-inclusive our world still can be for people with disabilities, it doesn't seem like a big deal. But I think everyday of a little boy I once knew whose father fought everyday for one simple goal that was never realized, which was for the child to be able to go to his neighborhood school. And I know that discrimination, even segregation, still happens.

So I pledge that I will not use the words "retard" or "retarded" to mean "stupid." I will be careful with my words, and I will try to remember to pay attention when other people use these words, and to ask them to stop.

DISCLAIMER: This blog is not intended as legal advice. If you need advice in this area, it's advisable to seek out an attorney.

Contact A2Z

A2Z Educational Advocates is a team of special education attorneys and advocates located in Pacific Palisades, California, and we represent families throughout southern California. You can reach us at: